APPEAL FROM FLOYD CIRCUIT COURT HONORABLE JANIE MCKENZIE-WELLS, SPECIAL JUDGE ACTION NO. 10-CI-00935
BRIEF FOR APPELLANT: J. Adam Newton Ashland, Kentucky.
BRIEF FOR APPELLEE: Jennifer Burke Elliott Prestonsburg, Kentucky.
BEFORE: COMBS, MOORE, AND TAYLOR, JUDGES.
April Hicks appeals from the order of the Floyd Family Court that designated Jerri Halsey as the de facto custodian of Hicks's child and awarded Halsey sole custody. After our review, we affirm in part, vacate in part, and remand.
Hicks's child (Child) was born on September 25, 2008. In December 2009, Hicks and Child moved in with Halsey, who is Hicks's sister. On February 13, 2010, Hicks went to Tennessee to meet a man with whom she had become acquainted on the internet. Before leaving, she signed a notarized document which authorized Halsey and Halsey's ex-husband to seek medical treatment for Child if needed. Both Hicks and Halsey testified that Hicks planned to retrieve Child at some undetermined point in the future. However, Halsey testified that in the meantime, she needed to place Child in daycare and that she was unable to do so without official guardianship of Child. Halsey also recognized that Child exhibited developmental delays and needed help. Child was eligible to be enrolled in the First Steps program, but again, the involvement of an official guardian was required.
Therefore, Halsey filed a petition for guardianship of Child in Floyd District Court on February 19, 2010. On the same day, upon advice of the county attorney, Halsey also filed criminal charges against Hicks for child abandonment. Meanwhile, after a brief stay in Tennessee, Hicks apparently moved to Alabama without explanation for a period of time. Halsey did not have any means of contacting her. Hicks did not send money to Halsey for Child's expenses; it is disputed as to whether Hicks tried to contact Halsey by telephone.
However, it is undisputed that Hicks has not seen -- nor attempted to see --Child since February 13, 2010. Hicks returned to Kentucky -- but not to Floyd County. She filed a motion to set aside the guardianship on June 7, 2010. On August 31, 2010, Halsey filed a petition in Floyd Family Court seeking de facto custodian status and custody of Child.
After being continued a number of times, the case was heard on February 23, 2012. Halsey, her daughter, and her husband each testified that Child was fully integrated into their household. They testified that Halsey cares for Child on a daily basis. Both Halsey and her daughter recounted an episode that occurred three days before Hicks initially left their home. Child was very sick, and although Hicks was in the home, Halsey's daughter tended to Child while Halsey was at work. When Halsey came home from work, she and her daughter took Child to the emergency room. Hicks did not go along.
Medical records showed that Child had presented at the hospital with a fever of one hundred three degrees. Hicks testified that Child had never had a fever when she was in Halsey's home. She also refused to acknowledge that Child had any developmental problems. Hicks testified that she had not attempted to see Child in person in the nearly two years that she had been back in Kentucky. She also acknowledged that she had not sought visitation with Child through the courts. The family court entered its findings and order designating Halsey as de facto custodian and granting her custody on May 29, 2012. Hicks filed this appeal.
Hicks argues that the family court erroneously designated Halsey as Child's de facto custodian. We disagree. A de facto custodian is:
a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age[.]. . . Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.
Kentucky Revised Statute[s] (KRS) 403.270(1)(a). The purpose of designation as a de facto custodian is to afford a person who has acted as a parent equal status with parents in court. Allen v. Devine, 178 ...